5OS01 Specialist Employment Law explores key areas of employment legislation and the legal framework, highlighting how people professionals must consider and apply legal requirements across different jurisdictions when carrying out the diverse aspects of their role.
Assessment Questions
AC 1.1 A fellow people management officer estimates that 20% or so of her working days are taken up with activity that is created as a result of regulations. She states this is time she would prefer to spend more productively improving the employment experience that the Trust provides. To help her understand why it is important to spend time dealing with issues that relate to employment law, send a reply that includes an evaluation of the aims and objectives of employment regulation.
Thank you for your email. I understand that managing regulatory compliance alongside your broader responsibilities can feel burdensome. However, the time invested in employment regulation is not unproductive; it is fundamentally protective and strategically valuable for the Trust.
The primary aim of employment regulation is to protect employees from exploitation, unfair treatment, and unsafe working conditions by establishing enforceable minimum standards that all employers must observe. The Employment Rights Act 1996 (ERA 1996) provides foundational protections including unfair dismissal rights, the right to written terms, protection against unauthorised deductions from wages, and redundancy entitlements. The Equality Act 2010 prohibits discrimination on the basis of nine protected characteristics, ensuring that employment decisions within the Trust are based on merit rather than prejudice. The Health and Safety at Work etc. Act 1974 imposes a duty of care to ensure the physical and psychological safety of our workforce, which in a clinical environment is directly connected to patient safety.
A second aim is to balance the inherent power imbalance in the employment relationship. Without regulation, the employer’s superior bargaining position could lead to exploitative practices. Employment regulation creates a floor of rights that ensures employees are treated with dignity, paid fairly through National Minimum Wage legislation, provided with reasonable working conditions under the Working Time Regulations 1998, and given voice through the Information and Consultation of Employees Regulations 2004 (Lewis and Sargeant, 2023).
A third aim is to promote social justice and economic stability. Regulation addresses systemic inequalities, advances equal opportunities, and contributes to a productive economy by maintaining consumer spending power through fair wages and reducing the social costs of workplace injury and unemployment. The CIPD (2024) emphasises that effective compliance also protects the organisation from costly employment tribunal claims, reputational damage, and the operational disruption of legal proceedings.
Ultimately, the time you spend on regulatory compliance directly protects the Trust from substantial financial and legal risk, supports our duty of care to employees and patients, and underpins the fair, inclusive employment experience we aspire to provide. Regulatory compliance and a positive employment experience are complementary rather than competing objectives (Daniels, 2024).
AC 1.2 You are asked to brief a senior manager in your team about the status of judgements made by the European Court of Justice (ECJ) prior to the UK’s departure from the European Union in 2020. Do these remain good law? Are they still binding on the UK courts? Or can they now be disregarded? He asks for an example by way of illustration.
Thank you for raising this important question. The status of European Court of Justice (ECJ) judgements made prior to the UK’s departure from the EU on 31 December 2020 requires careful explanation because it is nuanced and evolving.
Under the European Union (Withdrawal) Act 2018, the body of EU law as it existed at the end of the transition period was incorporated into UK domestic law as ‘retained EU law.’ This included ECJ judgements that interpreted the EU directives and regulations underpinning significant areas of UK employment law, including discrimination, working time, TUPE, and agency worker rights. Initially, these retained ECJ decisions had binding authority equivalent to UK Supreme Court decisions, meaning that lower courts and tribunals were required to follow them.
However, the Retained EU Law (Revocation and Reform) Act 2023 (REUL Act) significantly altered this position. Under the REUL Act, UK courts are no longer bound by retained EU case law and may depart from it when they consider it right to do so. The higher courts, specifically the Supreme Court, Court of Appeal, and in some circumstances the Employment Appeal Tribunal, now have the power to depart from retained EU case law. This does not mean that pre-Brexit ECJ decisions are automatically disregarded; they remain persuasive authority and continue to be followed in many cases. However, they can now be distinguished or overruled where UK courts determine that a different interpretation better serves the UK legal context (Lewis and Sargeant, 2023).
By way of illustration, the ECJ decision in British Gas Trading Ltd v Lock [2014] established that commission payments must be included in the calculation of holiday pay under the Working Time Directive. This principle was incorporated into UK law and has been applied by UK tribunals. Post-REUL Act, a UK court could theoretically depart from this interpretation, though doing so would require compelling justification and consideration of the impact on established employee rights.
In practical terms, I would advise colleagues to continue treating pre-Brexit ECJ case law as authoritative guidance that is likely to be followed by tribunals, while recognising that the legal landscape is gradually evolving and monitoring any significant UK court departures from established EU interpretations (Pitt, 2024).
AC 2.1 A colleague asks for advice about ‘occupational requirements’. She wants to know when she may and may not seek to stipulate that a job in her directorate must be carried out either by a man or a woman. Explain this to her, considering the main principles of discrimination law in recruitment and selection in your email with reference to specific examples.
Thank you for your enquiry about occupational requirements. The general principle under the Equality Act 2010 is that it is unlawful to discriminate against job applicants on the basis of any protected characteristic, including sex, during recruitment and selection. This applies to job advertisements, shortlisting criteria, interview questions, and appointment decisions. Stipulating that a role must be performed by a man or a woman is direct sex discrimination under section 13 of the Act.
However, the Act provides a limited exception through Schedule 9, Paragraph 1: the genuine occupational requirement (GOR) defence. An employer may stipulate a protected characteristic as a requirement for a role if it can demonstrate that, having regard to the nature or context of the work, being of a particular sex is a proportionate means of achieving a legitimate aim, and the requirement is crucial to the role rather than merely preferable.
In an NHS context, the most common legitimate application relates to the provision of intimate personal care. If a role requires the provision of intimate care to patients of a particular sex, and patients’ dignity and privacy would be compromised by a carer of the opposite sex, stipulating the sex of the postholder may be justified. For example, a female-only attendant role in a women’s mental health unit providing intimate personal care could constitute a legitimate GOR, provided the Trust can demonstrate that it has considered alternatives such as rota arrangements and that the restriction is proportionate (Equality and Human Rights Commission, 2024).
The GOR defence is interpreted strictly by tribunals. The Trust cannot rely on generalised assumptions or patient preferences alone; it must demonstrate a genuine, evidence-based need specific to the role. Each role must be assessed individually, and the requirement must be reviewed regularly to ensure it remains justified. Applying a blanket requirement that all roles in a department must be performed by one sex would almost certainly fail the proportionality test. I would strongly recommend that any proposed GOR is discussed with the People Management team before advertising, so we can assess its legal defensibility and document the justification (Lewis and Sargeant, 2023).
AC 2.2 A nurse manager wants to upgrade two of her health care assistants (HCAs) using some surplus money left over from a research project she has been carrying out. She wants to move them from the A grade on which the vast majority of HCAs in the Trust are employed to the higher B grade. The two people concerned are men. 80% of the HCAs in your Trust are women. She is asking you to approve the upgrade. Include discussion of the legal requirements of equal pay in your reply.
Thank you for bringing this to my attention. While I appreciate the nurse manager’s desire to recognise these colleagues, I cannot approve this upgrade without careful consideration of the equal pay implications.
The Equality Act 2010, sections 64–80, establishes the right to equal pay for equal work between men and women. Equal work is defined as like work (broadly similar roles), work rated as equivalent (under a job evaluation scheme), and work of equal value (different roles of comparable demands). In this case, if the two male HCAs are upgraded to a higher grade while the majority of female HCAs performing substantially the same role remain on the lower grade, the Trust would be creating a pay differential that disproportionately benefits men, which could constitute an equal pay claim from any female HCA comparator.
A female HCA on the lower grade could bring an equal pay claim arguing that she performs like work to the upgraded male HCAs and should receive equal pay. The Trust would then need to demonstrate a genuine material factor defence under section 69 of the Act, proving that the pay difference is due to a material factor that is not directly or indirectly discriminatory. The availability of surplus research funding is unlikely to constitute a robust material factor defence because it has no connection to the job content, responsibility, or performance of the individuals concerned.
The upgrade would also need to be assessed against the NHS Agenda for Change pay framework, which provides a structured, analytically evaluated grading system specifically designed to ensure equal pay compliance across the NHS. Bypassing this framework to upgrade individual employees based on funding availability rather than job evaluation creates significant legal risk.
My recommendation is that the upgrade should not proceed in its current form. If the nurse manager believes the roles genuinely warrant a higher grading, the proper process is to submit the posts for formal re-evaluation through the Agenda for Change job evaluation process. If the evaluation supports a higher banding, all employees performing the equivalent role should be regraded accordingly, regardless of sex. The surplus research funding could alternatively be used for legitimate one-off payments, such as additional responsibility allowances with proper justification, that do not create an ongoing equal pay liability (EHRC, 2024; Lewis and Sargeant, 2023).
AC 3.1 A colleague is concerned that a radiographer who recently resigned from the Trust may be about to make a constructive dismissal claim in relation to a change that was made recently to his working hours. She asks for your advice about the circumstances in which such a change can form the basis of a successful constructive dismissal claim and about how long former employees have to make claims before they are considered to be ‘out of time’ by the Employment Tribunal Service.
Thank you for your email. I understand your concern about a potential constructive dismissal claim.
Constructive dismissal occurs when an employee resigns in response to a fundamental breach of contract by the employer, where the breach is sufficiently serious that the employee is entitled to regard themselves as discharged from their contractual obligations. The leading authority is Western Excavating (ECC) Ltd v Sharp [1978], which established that the employer’s conduct must constitute a repudiatory breach of an express or implied contractual term. The employee must resign in response to that breach and must not have affirmed the contract by continuing to work for an unreasonable period after the breach.
A unilateral change to working hours can form the basis of a constructive dismissal claim if the change constitutes a breach of an express contractual term specifying working hours, or a breach of the implied term of mutual trust and confidence if imposed without consultation, consent, or reasonable notice. The key legal tests are whether the change was contractually permitted through a flexibility clause; whether the employee consented to the change; whether the employer followed a fair process including consultation; and whether the change was so fundamental that it constituted a repudiatory breach. If the radiographer’s contract specified particular hours and these were changed unilaterally without agreement, this could form the basis of a viable claim.
Regarding time limits, the former employee has three months less one day from the effective date of termination, which in constructive dismissal cases is the date of resignation, to submit a claim to the Employment Tribunal. Before submitting the claim, the claimant must first notify ACAS for mandatory Early Conciliation, which pauses the time limit for up to six weeks. The tribunal has discretion to extend the limitation period where it was not reasonably practicable for the claim to be presented in time, but this discretion is exercised restrictively. Given these tight timescales, I recommend that we urgently review the circumstances of the hours change, the contractual position, and any consultation that took place, so that we can assess the Trust’s exposure and consider whether an early resolution through ACAS conciliation might be appropriate (Lewis and Sargeant, 2023; Daniels, 2024).
AC 3.2 A senior manager is leading on a reorganisation in his directorate. Fifty posts are to be lost, some of which will involve compulsory redundancies. He is keen to get on with the process quickly, simply dismissing the poorest performers and avoiding as much by way of time-consuming consultation as possible. Include discussion of the legal requirements relating to redundancy in your answer.
Thank you for your email. I must advise strongly against the approach the senior manager is proposing, as it would expose the Trust to significant legal liability on multiple fronts.
First, selecting employees for redundancy based on performance creates a substantial risk of unfair dismissal claims unless the selection criteria are objective, transparent, consistently applied, and agreed with employee representatives. Simply dismissing the ‘poorest performers’ without a documented, fair selection process would almost certainly result in successful unfair dismissal claims. Section 105 of the ERA 1996 provides that selection for redundancy for an automatically unfair reason, such as trade union activity, pregnancy, or whistleblowing, is automatically unfair regardless of the selection criteria used.
Second, the legal requirement for collective consultation cannot be circumvented. Under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), where an employer proposes to dismiss 20 or more employees as redundant within a 90-day period at one establishment, it must consult with appropriate employee representatives. Where 20–99 redundancies are proposed, consultation must begin at least 30 days before the first dismissal; where 100 or more are proposed, the minimum period is 45 days. The proposed loss of 50 posts therefore triggers the 45-day mandatory consultation period. Failure to comply entitles each affected employee to a protective award of up to 90 days’ pay.
Third, the employer must notify the Redundancy Payments Service at least 45 days before the first proposed dismissal using form HR1. Failure to comply is a criminal offence.
The legally compliant process requires the Trust to define the pool of employees at risk, establish objective and non-discriminatory selection criteria scored through a transparent matrix, consult meaningfully with trade union or elected employee representatives about ways to avoid or reduce redundancies and mitigate their consequences, consider suitable alternative employment for those selected, and provide statutory redundancy payments. I would recommend an urgent meeting to plan a compliant process that protects the Trust from legal challenge while achieving the necessary restructuring (Lewis and Sargeant, 2023; ACAS, 2024).
AC 3.3 Your Chief Executive Officer is about to open preliminary negotiations with a neighbouring hospital trust about the possibility of merging their two major pharmacy operations. The new centralised pharmacy will be based in your Trust but will provide services to the neighbouring trust as an expanded operation. She asks you to explain the major relevant rights that any employees involved in the merger might have in respect of the Transfer of Undertakings (i.e. TUPE) regulations should it go ahead at some date in the future.
Thank you for raising this at an early stage. If the pharmacy merger constitutes a ‘relevant transfer’ under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), as amended in 2014, the affected employees will have significant statutory rights that must be observed.
The fundamental principle of TUPE is that employees assigned to the undertaking being transferred automatically transfer to the new employer on their existing terms and conditions of employment. Their continuity of service is preserved, and they retain all contractual rights including pay, benefits, accrued leave, and pension entitlements (though occupational pension rights have specific provisions under the Pensions Act 2004). The transferee employer inherits all rights, powers, duties, and liabilities connected with the contracts of the transferring employees.
Dismissals connected to the transfer are automatically unfair under Regulation 7 unless the employer can demonstrate an economic, technical, or organisational (ETO) reason entailing changes in the workforce. Even where an ETO reason exists, the dismissal must still be procedurally fair. Variations to terms and conditions that are connected to the transfer are void under Regulation 4(4) unless there is an ETO reason and the variation is agreed with the employee.
Both the transferor and transferee have a duty to inform and consult with appropriate employee representatives. The transferor must provide the transferee with prescribed employee liability information at least 28 days before the transfer. Both employers must inform affected employees about the transfer, its timing, the reasons for it, and any proposed measures affecting employees. If either employer envisages measures that will affect employees, they must consult with representatives with a view to seeking agreement. Failure to inform and consult entitles affected employees to a compensation award of up to 13 weeks’ pay.
I strongly recommend that TUPE compliance is embedded in the merger planning from the outset, and that we engage specialist legal advice to map the employee population, identify who is ‘assigned’ to the pharmacy operation, and plan the consultation process (Lewis and Sargeant, 2023; Daniels, 2024).
AC 4.1 You are asked to explain the regulatory requirements relating to the calculation of holiday pay to a new colleague. There are several dozen nurse bank staff who are employed regularly but on a casual basis to work in his department. They mainly cover shifts when permanently employed colleagues are absent and he is keen to ensure that their holiday pay is calculated fairly and lawfully.
Thank you for your email. Ensuring that nurse bank staff receive correct holiday pay is both a legal obligation and an important aspect of the Trust’s commitment to fair treatment of its flexible workforce.
Under the Working Time Regulations 1998 (WTR), all workers, including casual and bank workers, are entitled to a minimum of 5.6 weeks’ paid annual leave per year. This right is not dependent on continuous or regular service; it accrues from the first day of engagement. For bank staff who work irregular hours, the entitlement is calculated proportionally based on the hours actually worked.
The calculation of holiday pay has been the subject of significant legal development. Following the landmark Supreme Court decision in Harpur Trust v Brazel [2022], the calculation method for workers with irregular hours was clarified: holiday pay for part-year workers should be based on the average weekly remuneration over the 52-week reference period, excluding any weeks in which no work was performed, rather than being pro-rated to the proportion of the year worked. This decision significantly increased holiday pay entitlements for casual and bank workers.
However, the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, effective from 1 January 2024, introduced a new framework specifically for irregular hours and part-year workers. Holiday entitlement for these workers is now calculated as 12.07% of hours worked in each pay period, accrued at the end of each pay period. This effectively overturned the Brazel decision for leave years beginning on or after 1 April 2024. Holiday pay for statutory leave must reflect ‘normal remuneration,’ which includes regular overtime, shift premiums, and other payments that are intrinsically linked to the performance of tasks under the contract.
For the nurse bank staff, I recommend implementing the 12.07% accrual method, ensuring that all elements of normal remuneration including shift enhancements are included in the holiday pay calculation, and maintaining clear records of hours worked and holiday accrued for each individual (Lewis and Sargeant, 2023; Pitt, 2024).
AC 4.2 A member of staff who is pregnant asks you to explain to her the major ways in which maternity leave and shared parental leave differ. She is considering which of these options would be most beneficial to her and her partner and is looking for your guidance before making her decision.
Thank you for your email. I appreciate that choosing between maternity leave and shared parental leave is an important personal and financial decision, and I am happy to explain the key differences.
Maternity leave under the Maternity and Paternity Leave etc. Regulations 1999 provides up to 52 weeks’ leave: 26 weeks’ ordinary maternity leave and 26 weeks’ additional maternity leave. The first two weeks after birth are compulsory maternity leave, during which the mother cannot work. Statutory Maternity Pay (SMP) is payable for 39 weeks: the first 6 weeks at 90% of average weekly earnings, and the remaining 33 weeks at the statutory flat rate or 90% of earnings, whichever is lower. The NHS typically provides enhanced occupational maternity pay above the statutory minimum under Agenda for Change terms.
Shared Parental Leave (SPL), introduced by the Shared Parental Leave Regulations 2014, allows the mother to curtail her maternity leave early and share the remaining entitlement with her partner. The maximum available SPL is 50 weeks, being 52 weeks less the compulsory 2-week maternity leave. Similarly, up to 37 weeks of Shared Parental Pay (ShPP) can be shared, calculated as the unexpired SMP weeks remaining when maternity leave is curtailed. ShPP is paid at the statutory flat rate, which is typically lower than the enhanced occupational maternity pay provided by the Trust under Agenda for Change.
The critical practical difference is financial: if the Trust provides enhanced occupational maternity pay, the employee may lose this enhancement if she curtails maternity leave to take SPL, as enhanced pay provisions typically apply only to maternity leave unless the employer has chosen to extend them to SPL. I strongly recommend checking the Trust’s specific SPL policy and the Agenda for Change terms before making a decision. Both parents should be eligible to take SPL, including same-sex partners, and the leave can be taken in non-continuous blocks if agreed by the employer. I suggest scheduling a meeting to review the financial implications based on the individual’s specific circumstances and the Trust’s policies (Lewis and Sargeant, 2023).
AC 4.3 A colleague in the People Management team has recently received a letter from a newly appointed administrative officer who is employed to work on your main hospital site. She is formally requesting the right to work from home on three days each week. Your colleague does not wish to accede to this request for fear that it will encourage other administrative staff to demand the right to work from home too and that this will reduce the quality of the service the team provides. Include an explanation of employment rights in relation to flexible working in your answer.
Thank you for your email. It is important that we handle this request correctly, as the legal framework governing flexible working has recently been strengthened.
The Employment Relations (Flexible Working) Act 2023, which took effect from 6 April 2024, made significant changes to the statutory right to request flexible working. Previously, employees needed 26 weeks’ continuous service to submit a request; the right is now a day-one employment right available from the first day of employment. Employees may make up to two requests in any 12-month period, and the employer must respond within two months of receiving the request rather than the previous three months. The employer must consult with the employee before refusing a request, and the employee is no longer required to explain the anticipated impact of their request on the employer.
Your colleague may refuse the request only on one or more of the eight statutory grounds specified in section 80G of the ERA 1996: the burden of additional costs; detrimental effect on the ability to meet customer demand; inability to reorganise work among existing staff; inability to recruit additional staff; detrimental impact on quality; detrimental impact on performance; insufficiency of work during the periods the employee proposes to work; and planned structural changes. The refusal must be genuinely based on one of these grounds, supported by evidence, and communicated to the employee in writing with an explanation.
I would advise against refusing the request simply because it might encourage others to make similar requests. This is not a recognised statutory ground for refusal, and a blanket approach that refuses all flexible working requests to prevent precedent would likely be considered unreasonable and could expose the Trust to claims. Each request must be considered individually on its merits. Furthermore, if the refusal disproportionately impacts women, who statistically are more likely to request flexible working due to caring responsibilities, it could constitute indirect sex discrimination under the Equality Act 2010 unless the Trust can demonstrate objective justification.
I recommend that your colleague arranges a consultation meeting with the employee to discuss the request, considers whether a trial period might address concerns about service quality, and if a refusal is necessary, documents clearly which statutory ground applies and the evidence supporting the decision (Lewis and Sargeant, 2023; ACAS, 2024; Daniels, 2024).
References
ACAS (2024) Code of Practice on Disciplinary and Grievance Procedures. London: Advisory, Conciliation and Arbitration Service.
CIPD (2024) Employment Law. Factsheet. London: Chartered Institute of Personnel and Development.
Daniels, K. (2024) Introduction to Employment Law: Fundamentals for HR and Business Students. 6th edn. London: CIPD Kogan Page.
Equality and Human Rights Commission (2024) Employment Statutory Code of Practice. London: EHRC.
Lewis, D. and Sargeant, M. (2023) Employment Law: The Essentials. 17th edn. London: CIPD Kogan Page.
Pitt, G. (2024) Employment Law. 12th edn. London: Sweet and Maxwell.